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Friday, March 02, 2007

No implied consent

Shawn Minihan won in State v. Poulton, No. 95,353 (March 2, 2007), reversing some Reno County drug convictions. The district court had held that a DOC officer had implied consent from a homeowner to go into the residence to arrest a parolee. The COA disagreed:

Consent by implication, however, is contrary to established law. Our Supreme Court has furnished clear guidance concerning voluntary consent. The consent must be "'unequivocal and specific'" and "'freely and intelligently' given." See Ninci, 262 Kan. at 32. In order to determine that Poulton had voluntarily consented to the officer's entry into his home, the trial court needed to find that Poulton's consent was unequivocal and freely given. The fact that Poulton acquiesced or impliedly consented in the officers' entry does not meet the standard for voluntary consent. Moreover, the State does not discharge its burden to prove voluntary consent to justify the lawfulness of a search "by showing no more than acquiescence to a claim of lawful authority." Bumper v. North Carolina, 391 U.S. 543, 548-49, 20 L. Ed. 2d 797, 88 S. Ct. 1788 (1968).

The COA went on to rule in the alternative that, if there was implied consent, the officer exceeded the scope of that consent:

The scope of a warrantless search based on consent is controlled by the suspect. Florida v. Jimeno, 500 U.S. 248, 252, 114 L. Ed. 2d 297, 111 S. Ct. 1801 (1991) ("A suspect may of course delimit as he chooses the scope of the search to which he consents."). Poulton's consent was conditional in light of the fact that he specifically told the officers that he would get Lamuz for them. Poulton telling the officers that he would get Lamuz for them and walking toward the area of the house where Lamuz was located placed a limitation on the scope of the search to which he consented. Mora clearly exceeded the scope of Poulton's consent when he physically restrained Poulton by grabbing his arm and telling him that he would get Lamuz and then proceeded through the house.

Finally, the COA noted that the KSC has held that residences are deserving of special protection:

In considering the high expectation of privacy in a person's home, the Reno court stated that it would apply "a heightened standard for reasonableness when entry into a suspect's residence is involved." [State v. Reno, 260 Kan. 117, 128, 918 P.2d 1235 (1996)]. Here, Poulton neither was a suspect nor was he under arrest when the officers entered his home. Absent these facts, consent, and exigent circumstances, the officers' entry into Poulton's home failed to meet the heightened standard of reasonableness test to justify their warrantless search of Poulton's home and bedroom.

As a result, the search violated the Fourth Amendment and the fruits of that search must be suppressed. Because the COA procedurally defaulted claims stemming from another search, it is unclear whether the decision will actually help Mr. Poulton. But there is certainly a lot of good Fourth Amendment law in the case.

[Update: the state did not file a PR, but Mr. Poulton did file a PR from that part of the case he lost on March 30, 2007, so the case is not final.]

[Further update: the KSC granted Mr. Poulton's PR on September 27, 2007. This case will likely be argued spring 2008.]